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House committees take first step to reform NSA

3:28 pm in Uncategorized by Shahid Buttar

Last week, the House Judiciary and Intelligence committees approved a bill that would begin the process of restoring constitutional limits to dragnet government surveillance. While a praiseworthy step in the right direction, the progress to date remains both entirely too slow, and deferential to the intelligence agencies.

Congress should immediately pass the USA FREEDOM Act, and then get back to work to pass the further restrictions on NSA spying necessary to render it compliant with the First and Fourth amendments.

A limited reform package

Several observers have noted various ways in which the bill passed out of the committees last week leaves a great deal to be desired. The House committees watered down the bill’s provisions before approving it, undermining its ability to meaningfully restrain government spying.

For instance, the revised bill would fail to stop “back door searches,” through which the government targets Americans for surveillance while claiming to target foreigners in order to evade legal restrictions created in the 1970s after the agencies were caught spying on peaceful domestic social movements. In addition, the measure that would have created a public advocate to lend some legitimacy to the secret FISA court was scuttled. Instead, the court will retain discretion to appoint a panel of privacy advisors.

Finally, the revised bill fails to ensure transparency. Its public reporting requirements, watered down in committee, previously would have covered a number of domestic surveillance activities, including controversial National Security Letters long abused by the FBI.

This week, a coalition of 30 organizations wrote to Congress to address vulnerabilities where “several technical corrections and clarifications to the bill are required if Congress is to help ensure that the bill language is not misinterpreted and its stated goal of ending bulk collection is met.” Encyclopedic writer and analyst Marcy Wheeler questioned ”whether the bill will actually expose more kinds of US person records to the scrutiny of the NSA.” And Georgetown law professor David Cole said “the biggest mistake any of us could make would be to conclude that this bill solves the problem.”

Most fundamentally, Danielle Brian from the Program on Government Oversight said, “We cannot expect this bill to protect privacy and civil liberties while the public and Congress continue to be in the dark about the policies in practice.”

These concerns are all valid. Unfortunately, they’re just the beginning of the story.

Deferring to agencies despite a decade of secret crimes

Beyond particular concerns with changes wrought by Senate committees to the USA FREEDOM Act are a series of broader problems. Despite its welcome progress, the policy reform process reflects a troubling pattern of congressional deference to agencies and officials without any legitimate basis.

No senior intelligence agency official has confirmed even a single instance in which the NSA dragnet helped stop a potential terrorist attack. Multiple independent review panels have affirmatively reached the conclusion that NSA surveillance has never actually helped protect national security, despite the self-protecting statements of executive officials to the contrary.

Meanwhile, some of those very same officials have been caught red-handed lying to Congress, about matters as fundamental as whether the NSA is spying on millions of Americans. The Director of National Intelligence misled Congress, despite having advance written notice of that question, prompting several members of Congress to seek his appropriate prosecution for perjury.

Instead, the officials implicated in mass constitutional crimes all remain in place, and only after a year since learning the facts is Congress finally taking steps to restore the rule of law.

The proportionate response to the Snowden revelations would be to remove the entire senior leadership of the domestic intelligence agencies. The fact that the agencies’ leadership remains in place — despite the revelation of over a decade of unconstitutional surveillance that has poisoned our nation’s international relations and undermined our constitutional legacy, self-protecting lies to Congress, the misappropriation of public funds, and documented abuses of these programs facilitating potential domestic violence —renders suspect so-called policy “reforms” that ultimately defer to their interests.

Restoring a legitimate baseline for debate

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Hedges v. Obama: The Supreme Court digs its head deeper into the sand

11:26 am in Uncategorized by Shahid Buttar

Outside the US Supreme Court

 The Supreme Court declined to consider  a constitutional claim challenging a law that enables indefinite detention of US citizens.

On Monday, the Supreme Court declined to consider Hedges v. Obama, a constitutional claim challenging a law that could enable the indefinite military detention of US citizens—within the US—without trial, charge, or evidence of crime. The decision is remarkable, both for its implications for fundamental rights, and its reflection on judicial independence.

A dangerous and controversial law

When the National Defense Authorization Act of 2012 was first signed into law on the last day of 2011, few observers noticed. Some version of the bill is passed every year, but the 2012 version inserted dangerous provisions that could expand the military’s domestic detention powers.

Several notable observers did take notice, however. Despite her complicity in mass NSA surveillance, Senate Intelligence Committee Chair Dianne Feinstein (D-CA) has spoken out against torture, as well as detention. When Congress debated the 2013 NDAA in 2012, she unsuccessfully tried to limit the detention provisions through amendments.

Military families also spoke out, supporting a county resolution in El Paso County, Colorado (the site of several military installations, including the Air Force Academy) that passed even before the bill became law. They recognized that:

[O]ne of our most fundamental rights as American citizens is to be free from unreasonable detention without due process of law, a right afforded to us by our Founding Fathers and guaranteed to us by over two centuries of sacrifice by our men and women in the Armed Forces whom we daily recognize and honor;

US District Judge Katherine Forrest also shared similar concerns. In September 2012, she issued a permanent injunction aimed to prevent the detention provisions from going into effect. She wrote that:

The due process rights guaranteed by the Fifth Amendment require that an individual understand what conduct might subject him or her to criminal or civil penalties. Here, the stakes get no higher: indefinite military detention–potential detention during a war on terrorism that is not expected to end in the foreseeable future, if ever. The Constitution requires specificity–and that specificity is absent.…

Although § 1021(b)(2) does not, strictly speaking, suspend the writ of habeas corpus, it eliminates all other constitutionally-required due process (indeed, leaving only the writ)

The Second Circuit’s decision to reverse her decision, and Monday’s Supreme Court decision to allow that reversal to stand, have dangerous and disturbing implications. The Snowden revelations may help explain why.

A whole worse than the sum of its parts

The power to detain—or, for that matter, kill—without charge or trial effectively inverts the presumption of innocence. Due Process requires the state to prove allegations before meting out punishments. Yet the indefinite detention powers of the NDAA could empower our military to imprison Americans on the basis of mere accusation, effectively treating people accused as if guilty until proven innocent.

Our nation has already legalized torture with impunity. Beyond undermining human rights, fueling terrorist recruitment and generating bad intelligence, torture also enables future officials to paint anyone potentially detained as guilty—even without proof, on the basis of “confessions” coerced by interrogators.

In other words, the NDAA could enable government detention, possibly of targets identified through the surveillance regime exposed by Snowden. While President Obama has renounced so-called “enhanced interrogation,” those detainees remain potentially vulnerable to torture techniques that could effectively contrive their guilt.

The only things as disturbing as the power to torture people into false confessions are the powers (1) to detain them without cause, (2) monitor them en masse in secret (potentially to identify potential dissidents), and (3) arbitrarily profile individuals and communities according to their race, religion, or point of view.

All of these powers are currently well-established in American law. Together, they could form the foundations for severe oppression, or even mass atrocity. Once triggered, it will take very little to bend those dangerous powers to horrific ends—and a great deal to stop them.

This is one reason why detention without trial—like mass surveillance—has always been viewed as a defining cornerstone of authoritarianism. The relevant question is not whether these powers can be abused: it’s whether anyone self-censors because they know they’re being watched, which has already been well documented.

The judiciary vs. itself

Also disappointing is the judiciary’s self-marginalizing erosion of its own independence. Our courts have abandoned not only the Constitution, but also themselves.

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Supreme Court hears GPS tracking case

8:53 am in Uncategorized by Shahid Buttar

Supreme Court - SepiaYesterday, the Supreme Court heard arguments in US v. Jones, a case regarding police use of GPS tracking devices in criminal investigations. The case has dire Fourth Amendment implications.

In its decision, the Supreme Court will settle differences between rulings of two federal appeals courts. In one case, US v. Jones, the lower court overturned a conviction, saying that police use of GPS tracking devices without a warrant violated the Fourth Amendment. In the other, US v. Pineda-Moreno, a different court upheld a conviction based on evidence obtained from a GPS tracker placed on the suspect’s car while it was parked in his driveway, denying that he had an expectation of privacy there.

Ahead of the arguments, I spoke to Lawyers.com, explaining that the Pineda-Moreno ruling makes a

ridiculous class distinction. It means that if you have enough money to enclose your property with a fence, the police can’t enter because you have an expectation of privacy within your property. If you don’t have those resources, then police can come in and attach a GPS device to your car without any judicial checks or balances. The decision means the Fourth Amendment doesn’t apply equally to everyone.

But it’s not just the class issues that create problems, as I noted in that same piece:

Buttar fears that if the Court doesn’t look beyond the formalistic Fourth Amendment analysis, the government will gain the unbridled power to track anyone, anytime, anywhere, without any oversight. But, he says, if the Court instead considers the purposes of the First, Fourth, or Fourteenth Amendments – which include protecting rights of association, privacy, free exercise of religion, and racial & ethnic minorities – the outcome will be different.

It’s easy to see how GPS tracking helps law enforcement catch criminals. After all it helped win these two convictions. But Buttar claims that the benefit to the government of warrantless GPS tracking is “trivial when you consider how easy it is for law enforcement to get a warrant. Compare the vast investigatory powers police already have against the profound harm to privacy and associational rights in removing any judicial check on warrantless location tracking. In asserting this authority, our government is claiming police powers more like those in the Soviet Union or Communist China, well beyond the traditionally limited government powers on which we Americans, inspired by our Founders, have always insisted.”

We at the Bill of Rights Defense Committee will be monitoring developments in this crucial case and posting more information here at FDL and on our blog as it becomes available.

But while we wait for the Supreme Court to rule, there’s more we can do to protect rights in our individual communities. Join—or start!—a local civil rights restoration campaign in your city or town or check out other ways to get involved.

The greatest casualty of 9/11: The America we knew

11:31 am in Uncategorized by Shahid Buttar

LibertyReflections on the 9/11 attacks are important and moving. But most overlook the enduring legacy of the attacks, in the form of the vastly greater damage done to American principles over the past decade. Whether in the context of surveillance, torture, or the congressional cowardice that has enabled them, our leaders have sullied the legacy of an America that once inspired the world.

Earlier this summer, when facing a crucial accountability moment for an agency that continues to abuse the rights of millions of Americans, members of Congress asked no tough questions, avoided controversy, and submitted to a White House proposal to entrench the FBI leadership—at the same time as they fought to the knuckles over issues that Congress created in the first place by spending the country into a fiscal black hole and absurdly cutting taxes in the midst of multiple wars.

Most astounding in all this is Congress’s apparent abandonment of its own institutional interests. Even in the face of documented lies by the FBI’s leadership to congressional committees and repeated proof that Congress, the press, and the public are hearing only tiny slices of the whole truth, Congress has failed to use its many tools to seek transparency and investigate executive abuses.

There was a time that America’s leaders took seriously their oaths to defend the Constitution by conducting aggressive oversight of executive agencies. A generation ago, for instance, the Church and Pike Committees investigated many of the same practices that have recurred in the past decade. The failure of their successors in Congress threatens the future of democracy in America and reflects a disturbing pattern of congressional submission to executive power.

Congress began lining up to defend executive abuses in the face of public criticism soon after the 9/11 attacks. Special registration requirements, the PATRIOT Act’s draconian surveillance powers, unprecedented authorities to arbitrarily—and indefinitely—detain individuals on the mere basis of accusation, and major revisions to the FBI Guidelines all generated little debate in Congress.

And while we might find comfort in the hope that a counter-movement would emerge, that hope is misplaced. Despite running on a platform announcing that the “choice between liberty and security” was “false,” the Obama administration has continued—and even expanded—the Bush administration’s surveillance and secrecy. And by reversing course on accountability for torture, the Obama administration affirmed that criminals with enough political connections would receive judges’ robes rather than prison terms.

Even when ordered by multiple courts to release evidence of detainee abuse, the White House refused. In fall 2009, in the midst of a year-long battle to extend healthcare to 42 million underinsured Americans, Congress took less than a week to change the law at the Obama administration’s request so that evidence of the Bush administration’s abuses would remain hidden from the public. This, after abandoning Obama’s original nominee to lead the Office of Legal Counsel at the Justice Department because she favored applying the law equally to all accused criminals, regardless of their political position.

Leave aside that hiding evidence of detainee abuse places our soldiers at risk abroad by driving the recruitment efforts of violent extremists and effectively inviting our enemies to treat our troops in the same inhumane way. Ignore the 2.3 million Americans rotting behind bars—25 percent of the world’s prisoners, in the nation that claims to lead the free world—while politically connected criminals enjoy power, prestige, and even lifetime judicial office. Forget about the sacrifices of the soldiers who gave their lives in WWII to usher in a lost era of peace, or how human rights precedents that our nation established in Nuremberg have been wrecked by our unwillingness to pursue uncomfortable truths.

Think instead about how the Freedom of Information Act (FOIA) came to be: through controversy stoked by grassroots activists who broke into an FBI office and elite critics who used their findings to spark a two-year congressional investigation documenting heinous abuses by FBI and CIA officials. The FOIA stood for 40 years, but when courts interpreted it to require the revelation of Pentagon crimes, Congress quickly joined President Obama to change the law. “Move along. Nothing to see here…”

Think about why the CIA destroyed videotapes documenting torture. And then remember the debate in the wake of Osama bin Laden’s elimination over whether to revive torture, even though the Defense Department said it was unhelpful and claimed to have ended the practice.

The American people voted in 2008 for change, including restoring constitutional protections against unchecked secret dragnet surveillance and accountability for human rights abuses. The abject failure of our government to reflect that mandate reflects how perverted our republic has grown. For a project that took two and a half centuries to build, the past decade has been catastrophic for democracy in America. When future generations look back on our failures, the attacks of a decade ago will be the least of their concerns.


Ten years ago on September 11, 2001, the United States suffered the worst terrorist attack in the nation’s history. In the panic of the weeks that followed, the American government began changing its counterterrorism policies in ways that undermined constitutionally guaranteed civil liberties, culminating in the passage of the USA PATRIOT Act on October 26, 2001. Within two weeks of that law’s passage, on November 10, 2001, organizers in Massachusetts founded the Bill of Rights Defense Committee to fight against that dangerous law and others that followed.

To mark the tenth anniversary of these pivotal events in American history and of our organization itself, the Bill of Rights Defense Committee is running a series of articles looking back on the last ten years. This post is part of that series.

Out of the Frying Pan and Into the Fire: Why the FBI Needs New Leadership

8:15 am in Uncategorized by Shahid Buttar

FBI Director Robert MuellerThe last ten years have witnessed an assault on the constitutional rights of law-abiding Americans, led largely by the FBI. Appointed mere days before the 9/11 attacks, Director Robert S. Mueller III has guided the bureau through the resurrection of many long discredited practices from its COINTELPRO era. Yet, the Obama administration has proposed extending Mueller’s term as FBI director. Congress should reject the proposal and insist on a nominee from outside the bureau to restore accountability, law and order. Just ask Nick Merrill in New York, Joe Iosbaker in Chicago or Ahmadullah Niazi in Los Angeles: three law-abiding Americans whose constitutional rights are among the casualties of the last decade.

The last time Congress extended the term of FBI director was in 1972, to keep J. Edgar Hoover in office. Years later, when the Church and Pike committees finally exposed the notorious counterintelligence program (aka COINTELPRO), Congress discovered that Hoover presided over severe abuses for decades.

During the era of Hoover and COINTELPRO, the FBI’s most famous target was Dr. Martin Luther King Jr., who the bureau targeted with a smear campaign aiming to split up his marriage and drive him to suicide. The National Association for the Advancement of Colored People was accused—without evidence—of subverting the state, as were activists promoting Puerto Rican independence, an end to the war in Vietnam, women’s rights and civil rights for racial minorities including Native Americans and African-Americans. According to the US Senate:

Many of the techniques used would be intolerable in a democratic society even if all of the targets had been involved in violent activity, but COINTELPRO went far beyond that … the bureau conducted a sophisticated vigilante operation aimed squarely at preventing the exercise of First Amendment rights of speech and association.

Repeating errors from Hoover’s discredited era hardly offers hope to restore law and order to the FBI. Given the bureau’s history as a recidivist agency notorious for recurring abuses of civil rights, why has the president proposed to extend the director’s term for the first time in nearly 40 years?

According to The Washington Post, the administration simply failed to get its act together in time: “The president’s request that Congress tinker with the 10-year term limit sets a bad precedent…. It may be the path of less resistance to retain an FBI director…. But staffing an administration on schedule is part of the president’s job.” Sen. Chuck Grassley (R-Iowa) agreed that the proposed extension would be “a risky precedent to set. Thirty-five years ago, Congress limited the FBI director’s term to one 10-year appointment as an important safeguard against improper political influence and abuses of the past.”

The Post is correct that the proposed extension threatens the “integrity of the bureau,” and Grassley is right that the precedent is dangerous—although both ignored the bureau’s mounting failures and abuses. The president’s proposal appears only worse when placed in the context of Mueller’s tenure.

Don’t take my word for it. According to my colleagues at the American Civil Liberties Union, “the FBI’s significant misuse of its authorities under the USA PATRIOT Act and the Foreign Intelligence Surveillance Act, the infiltration of mosques, the abuse of the material witness statute, the FBI surveillance of peaceful groups with no evidence of criminal wrongdoing and the mishandling of the FBI watch list have raised significant civil liberties concerns” during Mueller’s tenure. Similarly, a coalition of 46 civil rights organizations wrote to Congress last year, arguing that:

In considering the potential necessity of legislation to protect civil rights and civil liberties, Congress should not grant [FBI policies] artificial legitimacy, nor should the bureau be afforded credibility that it has not only failed to earn, but actively undermined…. [T]he Chairman of the House Judiciary Committee called for the FBI’s General Counsel to be replaced…. As a repeat offender, the bureau is long overdue for intervention by Congress.

When the Senate Judiciary Committee questioned the FBI director about the bureau’s surveillance activities, Mueller essentially lied to Congress, covering his tracks with a private letter to some senators admitting abject lawlessness and disclaiming any meaningful limits on the bureau’s authority. These violations are offensive in themselves; failing to accurately answer crucial Congressional questions in order to evade accountability is even worse.

Each of these problems, alone, is enough to demand change, rather than continuity, at the FBI. Taken together, they indicate a mounting constitutional crisis screaming out for the “change we can believe in” that the president promised three years ago.

Let’s start with the PATRIOT Act. Among other things, PATRIOT expanded national security letters (NSLs): administrative subpoenas immune from review, checks, or balances, demanding private records (often from third parties) while gagging the recipients and preventing disclosure to the public, press or Congress.

Beyond violating the privacy and Fourth Amendment rights of their targets, NSLs also violate the rights of recipients, such as Merrill, an Internet service provider in New York City silenced by the threat of prosecution for simply raising his voice about a letter he received demanding a customer’s private information.

The Justice Department’s internal watchdog has repeatedly examined the FBI’s use of NSLs. Every time, the inspector general documented pervasive, systemic—and even ongoing and expanding—violations by the bureau. The PATRIOT Act dramatically expanded the FBI’s powers, but under Mueller’s leadership, the bureau exceeded even those, repeatedly breaking the few remaining limits guarding the constitutional rights of law-abiding Americans.

And that’s just the beginning. Perhaps to justify its expanding budget in a time of fiscal crisis, the FBI has generated numerous fake “terrorist plots.” The Bureau’s modus operandi has been to recruit ex-convicts, give them huge sums of cash to bribe con men and then train and equip those targets for months (or even years) to commit fake attacks before making dramatic arrests amid sycophantic media fanfare.

In Newburgh, a depressed post-industrial town in upstate New York, the bureau offered tens of thousands of dollars each to four mentally unstable con men (including a schizophrenic and a heroin addict), whose worst real offense appears to be fraud, rather than the bomb plot of which they were ultimately convicted. Sending paid government informants to initiate violent plots presumes the guilt of entire communities on the basis of association and multiplies that offense by profiling according to race, religion or ideology.

Even beyond civil liberties, the strategy is an abject national security failure: profiling overlooks potential threats outside the profile, alienates affected communities, undermines opportunities to gain human intelligence and even encourages the violent extremism that the bureau claims to prevent. Even worse, the strategy does nothing to address real sources of potential terrorism.

In drug investigations, law enforcement agents routinely target producers or distributors—rather than consumers—because prosecuting consumers does nothing to actually reduce the supply of drugs. But under Mueller, the FBI’s counterterrorism efforts have ignored producers (those who propose real plots) and distributors (who recruit others to execute them) to settle for prosecuting consumers of terrorism—and fake ones, at that.

It gets worse. Emboldened by a Supreme Court decision last spring, the FBI began a political witch hunt last fall targeting dozens of peace and labor activists in Chicago and Minneapolis. The raids and secret grand jury investigations not only offend the First Amendment, but also reflect the kind of abuse for which the bureau grew infamous under the leadership of J. Edgar Hoover.

Finally, the bureau has enmeshed itself in the business of immigration enforcement, by supplying to Immigration and Customs Enforcement pre-conviction arrest data from local police departments around the country—even over the objections of local governing bodies. By supporting the Secure Communities program, the FBI is playing a key role going forward in undermining public safety and enabling a continuing “humanitarian crisis” in immigrant communities.

Like the now-infamous J. Edgar Hoover, Mueller has received widespread praise during his tenure for the bureau’s supposedly effective work under his leadership. It took a two-year Congressional investigation and tens of thousands of pages of records and testimony for the FBI’s dramatic abuses under Hoover to finally come to light. Mueller is no different; he has received praise from the administration and the Hill only because the FBI cloaks itself in secrecy, and the many communities raising their voices have been silenced by a mainstream press that has uncritically accepted the official narrative.

Rather than extend Mueller’s term, Congress should insist on a nominee from outside the bureau and heed the calls of former agents who have recommended “[a] wide-ranging Congressional investigation of the sort conducted by the Church Committee,” to uncover further abuses that remain secret. If Congress wants to pass legislation involving the FBI, rather than extend Mueller’s term, it should impose a legislative charter to restore law to a lawless domestic intelligence agency that has, yet again, run amok.

Creative Commons LicenseThis work, originally published by Truthout, is licensed under a Creative Commons Attribution-Noncommercial 3.0 United States License.